Section 14 Subsequent applications

Transcription

1 Section 14 Subsequent applications Introduction The right to submit a subsequent application Examination in the framework of the examination of the previous application Examination in the framework of an appeal Examination in the framework of a specific procedure for the preliminary examination of subsequent applications - Preliminary examination as a first stage within the normal procedures - Specific procedures for the preliminary examination of subsequent applications Who conducts the preliminary examination? Procedural safeguards accorded to the preliminary examination of subsequent applications - Provision of information on the right to submit a subsequent application and the procedure for the preliminary examination of subsequent applications - Services of an interpreter - Opportunity of a personal interview Submission of facts and evidence Time-limits for the submission of new information The decision Notification of the decision The right to remain Reduction or withdrawal of reception conditions Summary findings regarding procedural guarantees Treatment of subsequent applications after withdrawal or abandonment of the previous application Interpretation of new elements or findings Wider category of cases afforded a subsequent application Subsequent applications by previous dependants The treatment of sur place claims Limitations on the right to submit a subsequent application Right of appeal against a negative decision following the preliminary examination 1

2 Section 14 Subsequent applications Introduction Article 32 of the Asylum Procedures Directive (APD) addresses the situation where a person who has already applied for asylum in a Member State raises new issues or presents new evidence in the same Member State. These new issues or evidence are referred to in the APD as further representations or a subsequent application. 1 Article 32 APD sets out the situations in which Member States may consider that further submissions by a person represent a subsequent application, 2 and sets out the frameworks within which a subsequent application may be examined. The rationale for these provisions is stated in recital 15 of the APD: Where an applicant makes a subsequent application without presenting new evidence or arguments, it would be disproportionate to oblige Member States to carry out a new full examination procedure. In these cases, Member States should have a choice of procedure involving exceptions to the guarantees normally enjoyed by the applicant. As such, Article 32 (2) and (3) APD provides that a subsequent application, submitted after the (explicit or implicit) withdrawal of the previous application, or after a (final) decision on the previous application has been taken, may be examined in a specific procedure in which it shall first be subject to a preliminary examination to determine whether new facts or evidence have arisen or have been presented by the applicant. 3 The minimum procedural guarantees which are applicable to the preliminary examination are more limited than the basic guarantees set out in Chapter II of the Directive. 4 The APD, moreover, does not guarantee that the preliminary examination is conducted by the determining authority. 5 Furthermore, Member States may lay down in national law rules on the preliminary examination, but these must not render 1 Article 32 (1) APD. 2 Note that Article 33 also states that Member States may retain or adopt the procedure provided for in Article 32 in the case of an application for asylum filed at a later date by an applicant who, either intentionally or owing to gross negligence, fails to go to a reception centre or appear before the competent authorities at a specified time. 3 Article 32 (3) APD. 4 Article 24 (1) (a) APD stipulates that Member States may provide for a preliminary examination of subsequent applications which derogates from the basic principles and guarantees of Chapter II. Article 34 (1) APD limits the procedural guarantees to those set out in Article 10 (1) APD and Article 34 (3) (a) requires Member States to ensure that the applicant is informed in an appropriate manner of the outcome of the preliminary examination and, in the case the application will not be further examined, of the reasons for this and the possibilities for seeking an appeal or review of the decision. Notably, the APD does not guarantee the applicant the opportunity of a personal interview during the preliminary examination, nor the requirements for the examination of applications set out in Article 8. 5 Article 4 (2) (c) APD. 2

3 impossible the access of applicants for asylum to a new procedure or result in the effective annulment or severe curtailment of such access. 6 If it is determined that relevant new elements or findings have arisen or have been presented by the applicant, the determining authority must examine the subsequent application in conformity with the provisions of Chapter II as soon as possible. 7 UNHCR, in principle, agrees that subsequent applications may be subjected to a preliminary examination of whether new elements have arisen or been presented which would warrant examination of the substance of the claim. Such an approach permits the quick identification of subsequent applications which do not meet these requirements. However, in UNHCR s view, such a preliminary examination is justified only if the previous claim was considered fully on the merits. 8 There are many reasons why an applicant may wish to submit further evidence or raise new issues following the examination of a previous application for international protection, including: (i) (ii) (iii) (iv) (v) The situation in the country of origin may have changed and a well-founded fear of persecution or a real risk of suffering serious harm may be based on events which have taken place in the country of origin since the examination of the previous application. A well-founded fear of persecution or a real risk of suffering serious harm may be based on activities which have been engaged in by the applicant or convictions held by the applicant since s/he left the country of origin. A well-founded fear of persecution or a real risk of suffering serious harm may arise if there has been a direct or indirect breach of the principle of confidentiality during or since the previous procedure, and the alleged actor of persecution or serious harm has been informed of the applicant s application for international protection in the Member State. Deficiencies or flaws in the previous procedure may have prevented an adequate examination and assessment of all the relevant facts and evidence. For example, a lack of timely and appropriate information to the applicant on the procedure and his/her rights and obligations; lack of access to legal advice; a lack of competent interpretation; the omission of or poor conduct of the personal interview; a failure to provide a gender-appropriate interview; accelerated procedures may have been too quick for the applicant to acquire all the relevant evidence; etc. Trauma, shame, or other inhibitions may have prevented full oral testimony by the applicant in the previous examination procedure, particularly in the 6 Article 34 (2) APD. 7 Article 34 (3) (b) APD. 8 For further information, see subsection below on subsequent applications following the withdrawal of the previous application, and section 7 of this report on the withdrawal or abandonment of applications. 3

4 (vi) (vii) (viii) (ix) (x) case of survivors of torture, sexual violence and persecution on the grounds of sexuality. There may have been a change in the legislation, policy or case-law of the Member State since the examination of the previous application. Further relevant evidence may have been obtained by the applicant or arisen after the previous examination. The previous examination may have been discontinued or terminated on grounds of withdrawal or abandonment without a complete examination of all the relevant elements. 9 The previous application may have been submitted on behalf of a dependant who later wishes to submit an independent application in his/her own right. Short time-limits within which to exercise a right of appeal, and/or restrictions on the admissibility of evidence on appeal, may have prevented the use of an appeal to raise new elements or findings. UNHCR also recognises that some applicants may wish to submit a second application with a view to delaying or frustrating the enforcement of a removal order. In some Member States, the issue of subsequent applications is significant. For example, in Belgium, in 2008, 27.1% of all applications submitted were subsequent applications; in the Czech Republic, 36% of applications lodged in 2008 were subsequent applications 10 and in France, they represented 17% of all applications in In Germany, even though the number of subsequent applications filed in 2009 was 16.3 %, which represented the lowest level since 1995, 12 subsequent applications became 9 Note that in this circumstance, it is UNHCR s view that a request to pursue the original application should not be treated as a subsequent application in the sense that the applicant should not have to raise new grounds or evidence. See subsection below on subsequent applications following the withdrawal of the previous application and section 7 of this report on the withdrawal or abandonment of applications. 10 A total number of 1,656 applications were submitted in 2008 of which 596 were subsequent applications. 11 In Bulgaria, the determining authority does not maintain statistics on the number of subsequent applications; however, a significant number of subsequent applications involve applicants from Armenia. In Slovenia, according to statistics of the Ministry of the Interior, in 2007, the percentage of subsequent applications was 8.9%; in 2008, it was 7% of all applications lodged and no change of trend is foreseen for : 23.4%; 1996: 22.0%; 1997: 31.2%; 1998: 33.2%; 1999: 31.2 %; 2000: 33.2%; 2001: 25.4%; 2002: 22.2%; 2003: 25.5%; 2004: 29.0%; 2005: 32.6%; 2006: 30.1%; 2007: 36.8%; 2008: 21.2%; 2009: 16.3%. (BAMF supplement to Entscheiderbrief 2/2010; Aus der Geschäftsstatistik des Bundesamtes für das Jahr 2009 ; p. 1; published on 11 February 2010; available on While in 2008, 5,933 subsequent applications were lodged, there was a decrease of 9.3% during the same period in 2009 (Jan. to Dec.) when 5,384 follow-up applications were made. Comparative figures for the months of November and December 2009 show a decline in the number of subsequent applications from 398 to 344, i.e. a decrease of 13.6 %. (BAMF brochure Aktuelle Zahlen zu Asyl, p. 2; published on 21 January 2010; available on 4

5 especially significant following cessation decisions. 13 In contrast, according to the determining authority in Greece, no subsequent application has been submitted since the entry into force of PD 90/2008. UNHCR is not aware of any qualitative research or data which analyses the reasons for the submission of subsequent applications in Member States. However, to the extent that subsequent applications may be due to deficiencies in first instance procedures or restrictions on appeal, UNHCR s recommendations throughout this report are aimed at reducing these as causes for subsequent applications. This section principally addresses the Directive s provisions on the treatment of subsequent applications as set out in Articles 32 and 34. However, other articles of the Directive are also relevant and the reader is referred to other sections of this report as appropriate. The right to submit a subsequent application Article 32 APD refers to both further representations and subsequent applications. Neither of the terms is explicitly defined by the APD and, therefore, the definitions applied in Member States depend on national legislation. Article 32 (1) APD is a permissive clause according to which Member States may examine further representations or the elements of a subsequent application submitted by an applicant in the same Member State. This may be either in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework. Moreover or alternatively, Member States may apply a specific procedure for the preliminary examination of subsequent applications. 14 Such a procedure may be applied in the event of the previous application having been withdrawn or abandoned by virtue of Articles 19 and 20 APD, 15 and/or after a decision or a final decision has been taken on the previous application This refers to cases in which a final decision has been taken on the withdrawal of international protection. The examination of applications in the procedure for subsequent applications after a previous revocation of refugee status is not actually encompassed by the wording of Section 71 (1) 1 APA ( withdrawal, non-appealable rejection ). 14 Article 32 (2) APD 15 Article 32 (2)(a) APD 16 Article 32 (2) (b) APD states that such a specific procedure may be applied where the subsequent application is submitted after a decision has been taken on the previous application. Member States may also decide to apply this procedure only after a final decision has been taken. According to Article 2 of the APD a final decision means a decision on whether the third country national or stateless person be granted refugee status by virtue of Directive 2004/83/EC and which is no longer subject to a remedy within 5

6 As such, neither Article 32 (1) nor (2) APD explicitly requires Member States to examine any further representations or a subsequent application submitted by an applicant. Nevertheless, as Member States are obliged under international law to ensure that applicants are not sent to a country in breach of the principle of non-refoulement or in breach of their legal obligations under international human rights treaties, Member States should ensure that a requirement to examine further representations and subsequent applications is stipulated in national legislation. UNHCR s research has found that all the Member States surveyed for this research have legislation which allows an applicant to submit further representations or a subsequent application in particular circumstances. This is the case in Belgium, 17 Bulgaria, 18 the Czech Republic, 19 Finland, 20 France, 21 Germany, 22 Greece, 23 Italy, 24 the Netherlands, 25 the framework of Chapter V of this Directive irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome, subject to Annex III to this Directive. Chapter V of the APD sets out the provisions on appeal procedures and Article 39 of Chapter V stipulates the right to an effective remedy. 17 Article 51/8 of the Aliens Act stipulates that the minister or his authorized representative can decide not to take an asylum application into consideration when the foreigner, who has entered the country without fulfilling the necessary entry requirements, has already made the same application and he does not produce new elements containing significant indications for a well-founded fear of persecution as defined in the 1951 Convention, or containing significant indications of a real risk of serious harm warranting subsidiary protection. These new elements must relate to facts or situations that have taken place after the last phase in the procedure where the applicant could have produced them. The minister or his authorized representative must however take the asylum application into consideration when applicant has been notified earlier of a refusal decision which was taken based on article 52, 2, 3, 4 and 5, 3, 3, 4, 3 or article 57/10. Only an appeal for annulment at the CALL can be lodged against a decision not to consider a subsequent application. A request for suspension of this decision cannot be lodged. 18 LAR provides a legal definition of the term subsequent application in its Additional Provisions, Paragraph 1, item 6: Subsequent application shall mean an application for status in the Republic of Bulgaria which was submitted by an alien whose refugee or humanitarian status has been revoked or discontinued or in case the status determination procedure in the Republic of Bulgaria has ended with an effective decision. There is no special procedure for subsequent applications and they are usually transferred into the standard accelerated procedure under Article 68 LAR. (Amended, SG No. 52/2007) (1) An accelerated procedure shall be launched: 3. upon the registration of an alien who has submitted a subsequent status application. The exception is for subsequent applications by unaccompanied minors which are admitted directly to the regular procedure (Article 71(1), Article 72 (2), item 3 LAR), and this is also the case for beneficiaries of temporary protection (Article 71 (2) LAR). 19 Section 10a (e) ASA according to which the application is inadmissible e) if the alien repeatedly filed an application for international protection without stating any new facts or findings, which were not examined within reasons for granting international protection in the previous proceedings on international protection in which final decision was taken, if non-examination of those facts/findings in the previous procedure was not due to the alien. 20 Section 102 of the Aliens Act states: (1) A subsequent application means an application for international protection filed by an alien after his or her previous application was rejected by the Finnish Immigration Service or an administrative court while he or she still resides in the country, or if he or she has left the country for a short time after his or her application was rejected. (2) If a new application is filed while the matter is still being processed, the information given by the applicant is submitted to the 6

7 Slovenia, 26 Spain 27 and the United Kingdom. However, bearing in mind the fact that authorities processing the matter to be considered as a new statement in the matter. (3) A decision on a subsequent application may be issued without an asylum interview. 21 Article R Ceseda, Article R Ceseda and the Circular of 22 April Section 71 (1) APA in conjunction with Section 51 (1) to (3) Administrative Procedure Act. Section 71 (1) APA: If, after the withdrawal or non-appealable rejection of a previous asylum application, the foreigner files a new asylum application (follow-up application), a new asylum procedure shall be conducted only if the conditions of Section 51 (1) to (3) of the Administrative Procedure Act are met; this shall be examined by the Federal Office. The same shall apply to a child s application for asylum if the representative under Section 14a (3) has waived the processing of the asylum application. Section 51 (1) to (3) Administrative Procedure Act : (1) The authority shall, upon application by the person affected, decide concerning the annulment or amendment of a non-appealable administrative act when: 1. the material or legal situation basic to the administrative act has subsequently changed to favour the person affected; 2. new evidence is produced which would have meant a more favourable decision for the person affected; 3. there are grounds for resumption of proceedings under section 580 of the Code of Civil Procedure. (2) An application shall only be acceptable when the person affected was, without grave fault on his part, unable to enforce the grounds for resumption in earlier proceedings, particularly by means of a legal remedy. 23 Article 23 of PD/ Article 29 (b) of the d.lgs 25/ The Netherlands has transposed Article 32 APD in its national law, regulations and administrative provisions by means of Article 4:6 General Administrative Law Act (Algemene wet bestuursrecht). The policy regarding subsequent applications is found in C14/5 Aliens Circular and in IND working instruction 2006/27 of 22 November 2006 on the application of Article 4.6 General Administrative Law Act. 26 Article 56 IPA (filing a new application): (1) A third country national or a stateless person whose application in the Republic of Slovenia has already been finally rejected, or has explicitly withdrawn the application, may file a new one only if he/she submits new evidence proving that he/she meets the conditions for acquiring international protection under this Act. (2) The new evidence shall occur after the issue of a preliminary decision, or may have existed already during the first procedure, although the person referred to in the preceding paragraph did not enforce these due to justified reasons. Article 57 IPA (procedure for filling a new application): (1) The persons referred to in the first paragraph of the preceding Article shall file a request with the competent authority for the introduction of a new procedure. In such request, the person shall produce evidence justifying the procedure. Filing of the request shall, mutatis mutandis, be subject to the provisions of Articles 47 and 48 of this Act. The applicants shall enjoy all basic procedural guarantees referred to in Article 8 of this Act. (2) If a legal representative, after issuing a request for the initiation of a new procedure, files the first application for a child born in the Republic of Slovenia, such an application shall be considered as the application referred to in the preceding paragraph. (3) A request for the introduction of a new procedure shall be decided by the competent authority with a decision. Upon the competent authority s establishment that the conditions referred to in the second paragraph of the preceding Article are met, the competent authority shall permit a new application to be submitted and shall act pursuant to Article 43 of this Act. (3) Otherwise, it shall reject the request for the introduction of a new procedure with a decision. (4) If a request for the introduction of a new procedure is filed the person referred to in the first paragraph of the preceding Article, on the basis of a decision by the police issued on the basis of the provisions of the Aliens Act, shall be accommodated by the authority, responsible for deportation. (5) If the person referred to in the first paragraph of the preceding Article withdraws the request for the introduction of a new procedure prior to the decision taken by the competent authority, the procedure shall be closed with a decision. (6) The person referred to in the first paragraph of the preceding Article shall become an applicant under this Act from the day of filing a complete new application. 27 There is no restriction on the possibility to present subsequent applications. Articles 9 AL and 38 ALR provided for the possibility to request a re-examination of an application upon which a negative decision 7

8 Article 32 APD contains permissive clauses, UNHCR s research revealed that practice among these states varies significantly with regard to the conduct of the preliminary examination of subsequent applications, including the opportunity for a personal interview, the information provided to applicants and other procedural guarantees enjoyed by applicants. The section below provides a snapshot of practice in the different states surveyed and some common themes identified. Recommendation The APD should be amended to stipulate that Member States shall examine further representations or the elements of a subsequent application in order to ensure compliance with Member States legal obligations under international refugee and human rights law. Examination in the framework of the examination of the previous application Article 32 (1) APD stipulates: Where a person who has applied for asylum in a Member State makes further representations or a subsequent application in the same Member State, that Member State may examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework. Of the 12 Member States surveyed for this research, the only state which might be considered to examine further representations in the framework of the examination of the previous application, after a decision has been taken on the previous application, is the UK. The UK transposition note with regard to the APD states that the UK is not establishing the kind of specific procedure for a preliminary examination of subsequent applications referred to in Articles 32 (2) to (4) and (7) APD, 28 although national legislation and immigration rules appear to contain many of the elements of a specific procedure for subsequent applications. 29 The UK immigration rules speak of further submissions rather than further representations or a subsequent application. The rules on in the regular procedure had already been adopted (this excluded applications that had been considered inadmissible). With the New Asylum Law, this possibility has disappeared and it remains only for those applications that were decided upon before the entry into force of the New Asylum Law. 28 See Explanatory Memorandum to the Asylum Procedures (Regulations 2007: SI 2007 No. 3187) 29 Immigration Rules 353 and 353A, together with NIAA 2002 s 96. 8

9 further submissions will only be applied following a final negative decision on the previous application (when all appeal remedies have been exhausted) 30 or withdrawal of a previous application. By way of an exception, applicants who have had their previous application certified as clearly unfounded under the Nationality, Immigration and Asylum Act, 31 and therefore, only have an out-of-country right of appeal, may nonetheless make further submissions prior to removal which must be considered in line with the national criteria. 32 If an applicant makes further submissions in the UK, the material will be considered by the determining authority. The determining authority may, on the basis of an examination, take a decision to grant a protection status or leave to remain on other grounds. On the other hand, if the determining authority considers that the further submissions do not warrant a grant of leave and it upholds its previous negative decision on the previous asylum application, the determining authority will then determine whether the material put forward in the further submissions amount to a fresh claim. 33 If the determining authority decides that the further submissions amount to a fresh claim, the applicant ordinarily has a right to appeal the decision to refuse the fresh claim. 34 In other words, it is possible that having examined the further submissions, the determining authority upholds its previous negative decision on the application, but then nevertheless determines that the further submissions amount to a fresh claim. If the determining authority determines that the further submissions do not amount to a fresh claim, the applicant does not have a right to appeal to the Asylum and Immigration Tribunal (AIT). 35 This procedural construct is the opposite of the specific procedure foreseen in the APD, whereby first a preliminary examination is conducted to determine whether the further representations or subsequent application constitute new elements or findings, and if 30 The API on Further Submissions states that if it has not been possible to raise the new material during the course of the appeal for any reason, the case owner of the determining authority should consider it after the conclusion of the appeal and apply Rule 353 on fresh claims (subsequent applications). 31 S ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL Paragraph 353 and 353A of the UK Immigration Rules: Fresh Claims 353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The criteria for a fresh claim are considered below. 34 This is because the decision to refuse a fresh claim is regarded as an immigration decision. Only immigration decisions ordinarily attract a right of appeal in accordance with the Nationality, Immigration and Asylum Act 2002 s 82 (1). However, if the determining authority certifies that the submissions could have been raised in an earlier appeal, there is no right of appeal against the refusal of the fresh claim in accordance with the Nationality, Immigration and Asylum Act s 96(1) and This is due to the fact that the further submissions are considered not to constitute a fresh claim and the decision of the determining authority to uphold its previous negative decision on the previous application does not constitute an immigration decision under the Nationality, Immigration and Asylum Act. 9

10 so, then the determining authority further examines the subsequent application. 36 In the UK, the determining authority first examines the further submissions and, only if rejected, does the determining authority then determine whether the further submissions constitute a fresh claim for the purpose of determining whether the applicant has a right of appeal. The UK s curious approach appears motivated by a desire to deny a right of appeal to applicants whose further submissions are considered not to constitute a fresh claim. Information on the criteria for a fresh claim and on the right of appeal is further discussed in the sub-sections below. It is also perhaps worth noting that, in Italy, an applicant may request that the determining authority re-open the previous procedure or the determining authority may itself decide to re-open a previous procedure, by virtue of the power of autotutela, in the case of, for example, a returnee under the Dublin II Regulation. 37 Examination in the framework of an appeal The APD also provides that Member States may examine further representations or the elements of a subsequent application in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework. 38 In practice, it must be borne in mind that, as is discussed in section 16 of this report on the right to an effective remedy, short time limits within which to lodge an appeal and general procedural rules governing the admissibility of evidence on appeal may preclude the introduction of new elements or findings in this framework. The above-mentioned provision would not, therefore, be applicable. In some of the Member States surveyed, such further representations or new elements can be submitted to and examined by the appellate body. This is the case in Bulgaria, 39 Finland, 40 France, 41 Germany, 42 Italy 43 and the UK Article 32 (3) APD: A subsequent application for asylum shall be subject first to a preliminary examination as to whether, after the withdrawal of the previous application or after the decision referred to in paragraph 2 (b) of this Article on this application has been reached, new elements or findings relating to the examination have arisen or have been presented by the applicant. 37 In via di autotutela legally means to put the matter right without legal process. 38 Article 32 (1) APD. 39 Article 171 (2) APC. The judges interviewed by UNHCR were unanimous that such new facts or elements would be taken into consideration as all facts which are submitted up until the oral hearings must be taken into consideration. However, the judicial instance may not decide on the merits of the case and it shall be returned to the determining authority SAR for a review of the decision. 40 Ulkomaalaislaki (Aliens Act 301/2004, as in force ) section 102. If a decision on the first application has been appealed to the Helsinki District Administrative Court or to the Supreme Administrative Court and a subsequent application is filed during the course of the processing of the appeal, the claims in the subsequent application will be treated as new elements in the proceedings 10

11 However, in some Member States, conditions or restrictions are placed on the admissibility of new elements or evidence on appeal which may mean that this is not an option for the applicant. This is the case in Belgium, 45 the Netherlands 46 and Slovenia 47. Moreover, in Greece, the only appellate body is the Council of State which only has jurisdiction to review the legality of the determining authority s decision and not the facts. before the appellate organ. The appellate organs of the Finnish asylum procedure are not restricted in any manner when it comes to the processing of new facts or evidence in the procedure. 41 The only restriction is that new evidence has to be submitted at least 3 days before the hearing, if any. 42 New elements and findings established before the decision has become final primarily have to be presented in an appeal. Section 51 (2) Administrative Procedure Act: An application shall only be acceptable when the person affected was, without grave fault on his part, unable to enforce the grounds for resumption in earlier proceedings, particularly by means of a legal remedy. The internal guidelines of the determining authority (BAMF) contain detailed information on how to proceed with subsequent applications lodged while the appeals procedure is still ongoing. (Different case scenarios are explained, e.g. submission of an application to the BAMF before/after the oral hearing at court; applications in cases in which the BAMF is of the opinion that the appeal is inadmissible.) Section 77 (1) APA: In disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral proceedings; if the decision is taken without oral proceedings, it shall be based on the situation at the time the decision is taken. Section 74 (2), second sentence shall remain unaffected. According to Section 74 (1) APA, as a rule, the appeal can only be filed within two weeks from the day on which the decision was served. The deadline for filing an appeal is only one week, where it is provided in the law that a request for suspensive effect must be submitted within one week. In all cases, the reasoning for the appeal has to be submitted within a deadline of one month from the date on which the decision was served (Section 74 (2) APA). (Modified deadlines apply in case of a rejection as manifestly unfounded and the denial of entry in the airport procedure (Section 18 (4) APA).) However, the court may preclude facts and evidence not presented in the reasoning of the appeal within the one-month deadline if their admission would delay the procedure, and there are not sufficient grounds to excuse the delayed submission, and the applicant was informed of the consequences of failing to meet the deadline (Section 74 (2) 2 APA in conjunction with Section 87b (3) Code of Administrative Courts Procedure). In contrast, facts which become known only after the expiry of this deadline may be submitted later on without specific limitations (Section 74 (2) 4 APA). Section 36 (4) 2, 3 APA, applying in cases of irrelevant and manifestly unfounded applications, stipulates: Facts and evidence not stated by the persons involved shall not be considered unless they are obvious or known to the court. The introduction of facts and evidence which were not considered in the administrative procedure pursuant to Section 25 (3) and facts and circumstances within the meaning of Section 25 (2), which the foreigner did not produce in the administrative procedure may be left unconsidered by the court if the decision would otherwise be delayed. Section 25 (2) and (3) APA: (2) The foreigner shall relate all other facts or circumstances which preclude deportation or deportation to a specific country. (3) If the foreigner produces such facts only at a later stage [i.e. after the personal interview], they may be ignored if the decision of the Federal Office would otherwise be delayed. The foreigner shall be informed of this provision and of Section 36 (4) third sentence. Other possibilities to achieve a modification of the decision pursuant to the general administrative laws will not be further discussed in the framework of this chapter. 43 Article 35 (10) of the d.lgs. 25/ The Asylum and Immigration Tribunal is able legally to consider new elements or findings that have not been examined by the Secretary of State (Nationality Immigration and Asylum Act 2002 s 85(4)). 45 This is governed by criteria laid down in Article 39/76 of the Aliens Act. 46 Article 83 of the Aliens Act Article 52 of the Administrative Dispute Act, 1 January

12 By way of example, in Belgium, the appellate body (CALL) is required to consider new elements subject to three cumulative conditions: firstly, the new elements must be linked to the original petition for international protection; secondly, the new elements are such that they can establish in a firm manner the founded or unfounded character of the appeal; and thirdly, the applicant was not able to invoke these elements earlier in the administrative procedure. 48 However, these formalistic requirements have been given a less strict interpretation by the Constitutional Court, 49 although this has in turn been brought into question by a further ruling in another case. 50 Moreover, stakeholders interviewed by UNHCR indicated that there is a difference in the treatment of new elements between the French-speaking and the Flemish-speaking sections of the CALL, whereby the French-speaking chambers seem more inclined to put formalistic conditions aside and address the content of the new elements. One unfortunate consequence identified by this research is that this legal uncertainty has prompted some lawyers to advise their clients not to raise new elements at appeal but instead to withhold them for a subsequent application, for fear of otherwise burning this evidence. This is clearly not conducive to an efficient streamlining of the procedure. Similarly, in the Netherlands, there are significant restrictions and strict conditions placed on the submission of additional or new evidence to the District Courts. The District Courts do not accept additional oral or documentary evidence which relates to circumstances which occurred before the determining authority took its decision. 51 The court will take into account facts and circumstances that have arisen subsequent to the first instance decision, unless this violates the principle of due process or unless the completion of the case will be delayed disproportionately. 52 With regard to the question of whether there are such facts and circumstances, the same criteria to establish the 48 Article 39/76 of the Aliens Act. This further defines new elements as follows: (1) elements regarding facts or situations which have occurred after the last phase in the administrative procedure during which the applicant could have invoked them, or (2) all new elements or proof supporting facts or reasons which were already brought forth during the administrative procedure. 49 GWH 27 May 2008, nr. 81/2008, B.29.1-B.30. The Court stated that the CALL must examine each new element that the applicant introduces and which is of such nature that it can show, in a firm way, the well-founded character of the appeal October 2008, nr. 148/2008, B.6.5. This ruling by the Constitutional Court appeared to re-introduce a requirement that the requesting party must give a plausible explanation of why it did not communicate the new elements earlier in the procedure. CALL judges interviewed by UNHCR, however, indicated that their approach remained flexible where the new element was of significant importance. 51 See section 16 of this report on the right to an effective remedy for further details. 52 Article 83 Aliens Act reads: 1. In assessing an application for judicial review, the District Court may take into account facts and circumstances that have occurred since the disputed order was made, unless this would be contrary to due process of law or the examination of the case would as a result be delayed to an unacceptable extent. 2. The power referred to in subsection 1 shall exist only in so far as the facts and circumstances may be relevant to the decision on the residence permit referred to in Articles 28 and The District Court shall request the Minister to inform the opposing party and the Court in writing as quickly as possible whether the facts and circumstances that have been invoked are grounds for upholding, altering or revising the disputed order. 12

13 newness of these elements are used as the criteria under Article 4:6 General Administrative Law Act. This has led to jurisprudence stating that it is up to the applicant to decide whether s/he wants to present any new elements in the framework of an appeal or to file a subsequent application. 53 The option either to pursue a legal remedy on appeal or to submit a subsequent application does not arise in the UK, as applicants with an exercisable right of appeal must, in accordance with administrative guidelines, raise any new evidence or elements in the framework of the appeal. 54 As mentioned above, no restrictions are imposed on the admissibility of new evidence or elements to the appellate authority. However, applicants who have had their initial application certified as clearly unfounded under the Nationality, Immigration and Asylum Act s94 and have an out-of-country right of appeal may nonetheless make further submissions prior to removal without having to exhaust their appeal remedy. In this regard, it should be noted that Article 32 (6) APD states that Member States may decide to further examine the application only if the applicant concerned was, through no fault of his/her own, incapable of asserting the situations in the previous procedure, in particular by exercising his/her right to an effective remedy. UNHCR stresses that the implementation of such a procedural bar may lead to a potential breach of the Member State s non-refoulement and human rights obligations. It has been stated that it is doubtful if it could validly prevent the making of a fresh application even where the claimant ought to have brought forward the material now relied on at an earlier stage. 55 However, UNHCR s research has found similar clauses in Member States national legislation, for example, the Czech Republic. 56 Recommendation Member States should not automatically refuse to examine a subsequent application on the ground that the new elements or findings could have been raised in the previous procedure or on appeal. Such a procedural bar may lead to a breach of Member State s non-refoulement and human rights treaty obligations. 53 See Council of State, 12 May 2003, /1. 54 If the applicant raises new material after his/her asylum application has been refused, but before the appeal is heard, the API Further Submissions state that the applicant should raise this material in the context of the appeal and Rule 353 should not be applied. In fact, if further submissions are made and after an initial consideration they are refused but meet the national criteria of a fresh claim, there will be no right of appeal to the Tribunal if the Secretary of State certifies that the applicant could have raised the evidence or issues in an earlier appeal: Nationality, Immigration and Asylum Act 2002, s96. The only recourse is judicial review. 55 See A Manual for Refugee Law Judges relating to European Council Qualification Directive 2004/83/EC and European Council Procedures Directive 2005/85/EC, John Barnes, 2007 at p Section 10a ASA states that the non-examination of the new facts or findings in the previous procedure must not be due to the alien. 13

14 Examination in the framework of a specific procedure for the preliminary examination of subsequent applications Article 24 (1)(a) APD states that Member States may provide for a specific procedure for the preliminary examination of subsequent applications. 57 Article 32 (2) APD states that this procedure may be applied where a person makes a subsequent application for asylum: (a) after his/her previous application has been withdrawn or abandoned; (b) after a decision has been taken on the previous application or only after a final decision has been taken on the previous application i.e. all legal remedies with regard to the previous application have been exhausted. 58 The purpose of the preliminary examination is to determine whether, after the withdrawal of the previous application or after the (final) decision on the previous application, new elements or findings relating to the examination of whether the applicant qualifies as a refugee have arisen or have been presented by the applicant. 59 UNHCR notes that in those Member States which operate a single procedure for the determination of both refugee and subsidiary protection status, such a preliminary examination should also assess whether new elements or findings relating to the examination of whether the applicant qualifies for subsidiary protection status have arisen or have been presented by the applicant. It must be underlined that Article 24 (1) (a) and Article 32 (2) APD are permissive and Member States are not required to establish a specific procedure for the preliminary examination of subsequent applications. However, where a specific procedure is applied, Article 32 (3) APD stipulates that a subsequent application for asylum shall be subject first to a preliminary examination as to whether new elements or findings exist. UNHCR s research has found that six of the 12 Member States surveyed conduct a specific procedure for the preliminary examination of subsequent applications: Belgium, 60 Germany, 61 Greece, 62 the Netherlands, 63 Slovenia 64 and Spain. 65 In 57 Article 24 APD deals with specific procedures which may derogate from the basic principles and guarantees of Chapter II APD. 58 A final decision is defined in Article 2 (d) APD as a decision on whether the third country national or stateless person be granted refugee status by virtue of Directive 2004/83/EC and which is no longer subject to a remedy within the framework of Chapter V of this Directive [on appeals] irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome. 59 Art. 32 (3) APD. 60 Article 51/8 of the Aliens Act. 61 In particular Section 71 (3) APA: In the follow-up application the foreigner shall give his address as well as the facts and evidence to fulfil the conditions listed in Section 51 (1) to (3) of the Administrative 14

15 Germany 66 and Slovenia, 67 this specific procedure is only applied to subsequent applications made following a final decision on the previous application (when all appeal remedies have been exhausted or expired) or following withdrawal of the application. 68 In contrast, UNHCR s research has found that in Bulgaria, 69 the Czech Republic, 70 Finland, France 71 and Italy 72, there is no specific procedure. Instead, the preliminary examination is conducted by the determining authority as an initial step or phase of the normal procedures. Also, in Spain, if the applicant has exhausted all his/her legal remedies with regard to the previous application, so that the decision on that previous application is final or if the application was declared inadmissible, a subsequent application will be examined within the normal admissibility procedure which is applied Procedure Act. The foreigner shall provide this information in writing upon request. A hearing may be dispensed with. Section 10 above shall apply mutatis mutandis. 62 Article 23 of PD 90/ Article 4:6 General Administrative Law Act provides that: 1. If a new application is made after an administrative decision has been made rejecting the whole or part of an application, the applicant shall state new facts that have emerged or circumstances that have altered; 2. If no new facts or changed circumstances are put forward, the administrative authority may, without applying Article 4:5, reject the application by referring to its administrative decision rejecting the previous application. 64 Article 57 IPA (procedure for filing a new application). 65 At the time of UNHCR s research, Article 9 AL and Article 38 ALR provided for a re-examination procedure. The procedure was applied after a decision had been taken by the determining authority on the previous application, but appeal remedies had not been exhausted. With the entry into force of the New Asylum Law, the re-examination procedure has been abolished and at the time of writing is only applied to applicants who lodged their applications prior to the entry into force of the New Asylum Law on 20/11/ Section 71 (1) 1 st sentence APA: (1) If, after the withdrawal or non-appealable rejection of a previous asylum application, the foreigner files a new asylum application (follow-up application), a new asylum procedure shall be conducted only if the conditions of Section 51 (1) to (3) of the Administrative Procedure Act are met; this shall be examined by the Federal Office. 67 Article 56 IPA states that the previous application must have been finally rejected or explicitly withdrawn. 68 Note that with regard to Slovenia, this refers to explicit withdrawal only. German legislation foresees the possibility of submitting a subsequent application only after the (explicit as well as implicit) withdrawal or non-appealable rejection of a previous asylum application. 69 In Bulgaria, subsequent applications are usually decided upon in the accelerated procedure. However, the interview is based on a specific sample questionnaire which differs from that used for the interview of first-time applicants in the accelerated procedure. This sample is focused entirely on eliciting any new elements. 70 Section 10a ASA: The application for international protection shall be inadmissible (...) e) if the alien repeatedly filed an application for international protection without stating any new facts or findings, which were not examined within reasons for granting international protection in the previous proceedings on international protection on which a final decision was taken, if non-examination of those facts/findings in the previous procedure was not due to the alien. 71 Article R Ceseda, Article R Ceseda and the Circular of 22 April Article 29 (b) of the d.lgs. 25/2008. A preliminary examination is conducted in the framework of the admissibility procedure. If the determining authority considers that there are new elements or findings, the examination is conducted in the ordinary procedure. If new elements or findings are not established, the application is declared inadmissible without a personal interview of the applicant. 15